United States v. Rodriguez

United States Court of Appeals
For the First Circuit
No. 06-2656

UNITED STATES OF AMERICA,

Appellee,

v.

YONATHAN RODRÍGUEZ,

T/N CARLOS RAMÍREZ OGANDA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

Before

Boudin, Chief Judge,
Torruella, Circuit Judge,
and Selya, Senior Circuit Judge.

Vivianne M. Marrero-Torres, Assistant Federal Public Defender,
with whom Joseph C. Laws, Jr., Federal Public Defender, and Héctor
L. Ramos-Vega, Assistant Federal Public Defender, were on brief,
for appellant.
Myriam Y. Fernández González, Assistant United States
Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States
Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, and
Thomas K. Klumper, Assistant United States Attorney, were on brief,
for appellee.

June 4, 2008
 SELYA, Senior Circuit Judge. In United States v.

Andújar-Arias, 507 F.3d 734 (1st Cir. 2007), a panel of this court

held that sentencing disparity attributable to the selective

inauguration of so-called "fast-track" programs for the processing

of immigration crimes could not form the basis for a variant

sentence. Id. at 739. This appeal requires us to gauge the

continued validity of Andújar-Arias in light of the Supreme Court's

subsequent decisions in Gall v. United States, 128 S. Ct. 586

(2007), and Kimbrough v. United States, 128 S. Ct. 558 (2007).

After careful evaluation of the effect of those decisions

on a sentencing court's discretion, we conclude that they undermine

the interpretive approach followed in a number of earlier cases in

this and other circuits, including Andújar-Arias. In fidelity to

the Supreme Court's new gloss, we abrogate Andújar-Arias to the

extent that it is inconsistent with this opinion, vacate the

sentence appealed from, and remand for resentencing.

I. BACKGROUND

We rehearse here only those facts that are necessary to

place this appeal in perspective. On April 21, 2006, local

authorities arrested defendant-appellant Yonathan Rodríguez as he

tried to enter the United States without inspection. Shortly

thereafter, a federal grand jury sitting in the District of Puerto

Rico charged him with attempting illegally to reenter the country

-2-
after having been removed following a felony conviction. See 8

U.S.C. § 1326(a), (b)(1).

In due course, the appellant pleaded guilty to the sole

count of the indictment. The presentence investigation report (PSI

Report) recorded his base offense level at 8, applied a sixteen-

level enhancement for a prior "crime of violence" felony

conviction, USSG §2L1.2(b)(1)(A), and recommended a three-level

reduction for acceptance of responsibility, id. §3E1.1. The

appellant had three prior convictions, placing him in criminal

history category (CHC) IV. Assuming an adjusted offense level of

21 and a CHC of IV, the guideline sentencing range (GSR) would have

spanned 57-71 months.

The appellant objected to the PSI Report, asserting that

his CHC overrepresented the gravity of his prior offenses. See id.

§ 4A1.3(b)(1). He also advanced two arguments in favor of a

variant (i.e., non-guideline) sentence: first, that the nature and

circumstances of his prior crime of violence conviction (for

assaulting a federal officer some six years earlier) did not

warrant a sixteen-level enhancement; and second, that the absence

of an early disposition program for immigration offenses in the

District of Puerto Rico created an unacceptable disparity.

Importantly, he premised this last request for a variant sentence

not only on 18 U.S.C. § 3553(a)(6), but also on section 3553(a)'s

overarching provision and sentencing goals.

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 This argument requires a few words of explanation. Early

disposition programs, also known as fast-track programs, date back

to the mid-1990s. They popped up spontaneously in federal district

courts along the border between the United States and Mexico as

part of an effort to manage burgeoning immigration caseloads. See,

e.g., United States v. Marcial-Santiago, 447 F.3d 715, 718 (9th

Cir. 2006). Typically, prosecutors would use charge-bargaining or

plea-bargaining techniques to hold out the prospect of shorter

sentences in return for prompt guilty pleas and waivers of

appellate rights. See id.

Congress placed its imprimatur on this paradigm in 2003,

authorizing the Attorney General to create early disposition

programs on a district-by-district basis throughout the country and

directing the Sentencing Commission to promulgate a policy

statement allowing downward departures in affected cases. See

Prosecutorial Remedies and Other Tools To End the Exploitation of

Children Today (PROTECT) Act, Pub. L. No. 108-21, § 401(m)(2)(B),

117 Stat. 650, 675 (2003).

Following the passage of the PROTECT Act, the Attorney

General established fast-track programs in a handful of judicial

districts. The District of Puerto Rico was not among them.

Seizing upon this selectivity, the appellant argued below

that the absence of an early disposition program in the District of

Puerto Rico resulted in an unwarranted sentencing disparity. He

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embellished this argument with a claim that, in some districts that

lacked formal fast-track programs, prosecutors engaged in rogue

charge-bargaining practices for immigration offenses, generating

similar disparities. Given this predicate, the appellant posited,

among other things, that sentencing him within the GSR would be

inconsistent with the overall thrust of 18 U.S.C. § 3553(a). In

particular, he asserted that a guidelines sentence would corrode

"respect for the law" and result in a sentence that is "greater

than necessary to comply with the purposes" of sentencing. Id. §

3553(a)(2)(A).

The district court agreed that the appellant's CHC

overrepresented the seriousness of his past crimes and departed

downward to a reduced CHC of III. United States v. Rodríguez, No.

06-1057, 2006 WL 3020040, at *1 (D.P.R. Oct. 19, 2006). This, in

turn, shrank the GSR to 46-57 months. Id. But the court refused

to grant a sentence below the reconfigured GSR.

The court's reasons were twofold. First, it analyzed the

record of the appellant's assault conviction and found that the

assault was sufficiently serious to justify the recommended

sixteen-level enhancement. Id. Second, it anticipated Andújar-

Arias (not yet decided) and refused to inquire into the existence

of a fast-track disparity. It indicated that it had no authority

to "disregard the advisory guideline sentencing range on this

ground." Id. To that end, it referred to case law holding that

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such a disparity was not "unwarranted" within the meaning of 18

U.S.C. § 3553(a)(6) and stated that, in any event, the absence of

a fast-track program in a particular district was "a battle that

must be fought with the Attorney General, and not in the courts."

Id.

The court proceeded to impose a 46-month incarcerative

sentence — a sentence at the bottom of the reconfigured GSR. This

timely appeal ensued.

II. ANALYSIS

Before us, the appellant mounts both procedural and

substantive challenges to his sentence. Procedurally, he alleges

that the district court erred in concluding that a sentencing

disparity attributable to the absence of a fast-track program in

the District of Puerto Rico could not constitute a permissible

factor in the complex of factors upon which a variant sentence

might be premised. Substantively, he alleges that his sentence is

unreasonable.

Given a properly calculated GSR,1 we review a sentence

for abuse of discretion. Gall, 128 S. Ct. at 591; United States v.

Martin, 520 F.3d 87, 92 (1st Cir. 2008). In this endeavor, we

first probe for procedural error, including the sentencing court's

1
In this venue, the appellant does not press any challenge to
the construction of the GSR per se. His attack on the sixteen-
level enhancement is limited to that enhancement's effect on the
substantive reasonableness of his sentence.

-6-
refusal to consider factors falling within the purview of 18 U.S.C.

§ 3553(a). Gall, 128 S. Ct. at 597; Martin, 520 F.3d at 92. If a

sentence is procedurally sound, we then proceed to assess its

substantive reasonableness. Gall, 128 S. Ct. at 597; Martin, 520

F.3d at 92.

In reviewing the appellant's claim of procedural error,

we do not write on a pristine page; a panel of this court

heretofore has held that disparity resulting from the selective

placement of fast-track programs is not "unwarranted" within the

meaning of section 3553(a)(6) and that, therefore, any such

disparity "may not be considered by a district judge in sentencing

as a basis for a variance from a Guidelines sentence." Andújar-

Arias, 507 F.3d at 739. The panel reasoned that by authorizing the

institution of fast-track programs in the PROTECT Act, Congress

gave implicit sanction to any disparity that might arise from the

institution of such programs in some districts but not in others.

Id. at 741-42.

As a general rule, newly constituted panels in a multi-

panel circuit are bound by prior panel decisions closely on point.

See Eulitt ex rel. Eulitt v. Me. Dep't of Educ., 386 F.3d 344, 349

(1st Cir. 2004); United States v. Rodríguez, 311 F.3d 435, 438-39

(1st Cir. 2002). This law of the circuit doctrine is a corollary

of the principle of stare decisis. It preserves and protects the

judiciary's commitment to finality, stability, and certainty in the

-7-
law. But the law of the circuit doctrine has soft edges; it is

"neither a straightjacket nor an immutable rule." Carpenters Local

Union No. 26 v. U.S. Fid. & Guar. Co., 215 F.3d 136, 142 (1st Cir.

2000).

In this spirit, courts have recognized that the doctrine

admits of exceptions. The most obvious exception applies when the

holding of a previous panel is contradicted by controlling

authority, subsequently announced (say, a decision of the authoring

court en banc, a Supreme Court opinion directly on point, or a

legislative overruling). See Eulitt, 386 F.3d at 349; Williams v.

Ashland Eng'g Co., 45 F.3d 588, 592 (1st Cir. 1995). A second,

less obvious exception, comes into play in "those relatively rare

instances in which authority that postdates the original decision,

although not directly controlling, nevertheless offers a sound

reason for believing that the former panel, in light of fresh

developments, would change its collective mind." Williams, 45 F.3d

at 592. The situation here possesses elements of both of these

exceptions.

Shortly after this court decided Andújar-Arias, the

Supreme Court decided Gall and Kimbrough. These decisions,

announced on the same day, shed new light on the scope of a

sentencing court's discretion under an advisory guidelines regime.

Collectively, they called into question a number of our earlier

decisions by emphasizing the breadth of a district court's

-8-
discretion to deviate from a defendant's GSR based on the

compendium of sentencing factors mentioned in 18 U.S.C. § 3553(a).

See Gall, 128 S. Ct. at 596-97; Kimbrough, 128 S. Ct. at 570, 575-

76. Concerned that this new jurisprudence might animate an

exception to the law of the circuit doctrine and undermine the

rationale for excluding any consideration of fast-track disparity,

we asked the parties for supplemental briefs. After painstaking

study, we are now persuaded that the gloss added by the Supreme

Court militates in favor of a new approach — an approach that

requires, inter alia, abrogating our holding in Andújar-Arias. We

elaborate below.

In Gall, the Court affirmed the imposition of a

probationary sentence that represented a "100% downward variance"

from the bottom of the applicable GSR. 128 S. Ct. at 594. In so

ruling, the Justices expounded further on a district court's

authority to vary from the guidelines, emphasizing that district

courts have wide latitude in making individualized sentencing

determinations. Id. at 594-98. Given Kimbrough's particular

pertinence to the inquiry at hand, we take some pains to delineate

the contours of the case.

In the mid-1980s, Congress enacted a statute that, for

certain sentencing purposes, "treated every gram of crack cocaine

as the equivalent of 100 grams of powder cocaine." Id. at 567; see

Anti-Drug Abuse Act of 1986, 100 Stat. 3207, 3207-2, -3 (codified

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in 21 U.S.C. § 841(b)(1)). Following Congress's lead, the

Sentencing Commission incorporated this 100-to-1 weight-driven

ratio into the sentencing guidelines. See USSG §2D1.1(c) (2006);

see also Kimbrough, 128 S. Ct. at 567.2 As a result, crack cocaine

offenses yielded sentences "three to six times longer than those

for powder [cocaine] offenses involving equal amount of drugs."

Kimbrough, 128 S. Ct. at 566.

Virtually from the start, this sentencing scheme drew

heavy fire for, among other things, resting on unfounded

assumptions about the harmfulness of crack relative to powder

cocaine. The Sentencing Commission itself concluded that the

disparity created by the 100-to-1 ratio was unwarranted. United

States Sentencing Commission, Report to Congress: Cocaine and

Federal Sentencing Policy 91 (May 2002). In 1995, it proposed

amendments to the sentencing guidelines to replace the 100-to-1

ratio with a 1-to-1 ratio. Kimbrough, 128 S. Ct. at 569. But

Congress rejected this proffer and has shown no enthusiasm for

subsequent ameliorative proposals.

Against this backdrop, a jury convicted Kimbrough on

various counts related to the possession and distribution of crack

2
In 2007, the Sentencing Commission took a small step toward
ameliorating the crack/powder disparity, unilaterally reducing by
two the base offense level associated with each quantity of crack
cocaine. See United States Sentencing Commission, Sentencing
Guidelines for United States Courts, 72 Fed. Reg. 28558, 28571-72
(2007); see also Kimbrough, 128 S. Ct. at 569.

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cocaine. At sentencing, the judge commented upon "the

disproportionate and unjust effect that crack cocaine guidelines

have in sentencing" and concluded that a sentence within the GSR

would be "greater than necessary" to accomplish the objectives set

out in 18 U.S.C. § 3553(a). Id. at 565. The judge determined that

a below-the-range sentence was "clearly long enough" to achieve

those objectives. Id.

The Fourth Circuit vacated the sentence. It took the

position that a sentence outside the guideline range was per se

unreasonable when premised on a disagreement with the stipulated

crack/powder ratio. United States v. Kimbrough, 174 Fed. Appx.

798, 799 (4th Cir. 2006).

On certiorari review, the question was whether a

sentencing court could ground a variant sentence based on its

disagreement, as a matter of sentencing policy, with the 100-to-1

crack/powder ratio. The Supreme Court answered this query

affirmatively, holding that "it would not be an abuse of discretion

for a district court to conclude when sentencing a particular

defendant that the crack/powder disparity yields a sentence

'greater than necessary' to achieve § 3553(a)'s purposes."

Kimbrough, 128 S. Ct. at 575. Speaking more broadly, the Court

indicated that, "as a general matter, courts may vary [from

Guidelines ranges] based solely on policy considerations, including

disagreements with the Guidelines." Id. at 570 (internal quotation

-11-
marks omitted). In making this pronouncement, the Court rejected

the government's contention that Congress had made the lopsided

ratio mandatory and "decline[d] to read any implicit directive into

. . . congressional silence." Id. at 571.

Having in mind the Court's new approach, we turn to the

case at hand. In the first instance, this requires that we mull

the continued vitality of Andújar-Arias. Of course, that decision

is, strictly speaking, limited to the question of whether fast-

track disparity can be considered by a sentencing court under 18

U.S.C. § 3553(a)(6). See Andújar-Arias, 507 F.3d at 738-39. But

the appellant in this case has cast a wider net; he argues not only

for consideration of that datum under section 3553(a)(6) but also

for its consideration as part of the broader constellation of

factors covered by section 3553(a). Because Andújar-Arias can

fairly be interpreted as establishing a bright-line rule, we

disregard semantics and treat the decision in Andújar-Arias as

standing in the way of the appellant's argument.

Several considerations lead us to conclude that, when

viewed through the prism of Kimbrough, the appellant's argument has

merit. Although Kimbrough involved the crack/powder ratio, its

approach plainly has wider implications arguably affecting a number

of our earlier cases, including but not limited to, how we have

treated disparities arising out of the selective institution of

fast-track programs. As to those programs — other cases not now

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before us are better left for another day — the analogy is

compelling.3

Like the crack/powder ratio, fast-track departure

authority has been both blessed by Congress and openly criticized

by the Sentencing Commission. See United States Sentencing

Commission, Report to the Congress: Downward Departures from the

Federal Sentencing Guidelines 66-67 (2003) (criticizing fast-track

programs for creating a "type of geographical disparity"). Like

the crack/powder ratio, the fast-track departure scheme does not

"exemplify the [Sentencing] Commission's exercise of its

characteristic institutional role." Kimbrough, 128 S. Ct. at 575.

In other words, the Commission has "not take[n] account of

empirical data and national experience" in formulating them. Id.

(citations omitted). Thus, guidelines and policy statements

embodying these judgments deserve less deference than the

sentencing guidelines normally attract. See id.

Given this pedigree, a sentence that is partially the

product of a fast-track departure might or might not "reflect a

rough approximation of sentences that might achieve § 3553(a)'s

objectives." Rita v. United States, 127 S. Ct. 2456, 2465 (2007).

3
Even before the advent of Kimbrough, several courts
recognized a substantial degree of doctrinal affinity between
variant sentences involving the crack/powder ratio and those
involving fast-track programs. See, e.g., United States v. Vargas,
477 F.3d 94, 100 (3d Cir. 2007); United States v. Spears, 469 F.3d
1166, 1181 (8th Cir. 2006).

-13-
If raised, the sentencing court will have to answer this question

in a particular case. And where that answer is favorable to the

defendant, a variant sentence premised on perceived inequities

attributable to the availability elsewhere of fast-track departures

would, given the Supreme Court's new gloss, seem to be entitled to

deference "even in a mine-run case." Kimbrough, 128 S. Ct. at 575.

Beyond these parallels between the crack/powder ratio and

the authorization for the selective institution of fast-track

programs, emergent case law signals that, under an advisory

guideline regime, sentencing has become a steadily more open-ended

enterprise. See, e.g., Gall, 128 S. Ct. at 597 (discussing a

sentencing court's superior coign of vantage "to find facts and

judge their import under § 3553(a)"). Recent decisions of this

court have noted this reality. See, e.g., Martin, 520 F.3d at 92;

United States v. Vega-Santiago, 519 F.3d 1, 4 (1st Cir. 2008) (en

banc).

Building on the foundation laid in United States v.

Booker, 543 U.S. 220 (2005), Kimbrough lends a new flexibility to

the scope of the district courts' sentencing authority and, in the

bargain, removes a formidable obstacle to the consideration of

matters such as fast-track disparity. We refer specifically to the

Kimbrough Court's enlargement of a sentencing court's capacity to

factor into the sentencing calculus its policy disagreements with

the guidelines. Kimbrough, 128 S. Ct. at 570. This makes plain

-14-
that a sentencing court can deviate from the guidelines based on

general policy considerations. Id. In so ruling, the Court

effectively displaced our holding in United States v. Pho, 433 F.3d

53, 62 (1st Cir. 2006), in which we had held that district courts

could not base sentencing decisions "on general, across-the-board"

policy disagreements with a guideline provision or policy statement

(there, the crack/powder ratio).

Importantly, Kimbrough counsels a new and different

approach to section 3553(a). Andújar-Arias illustrates this point.

There, as in some other pre-Kimbrough cases, the court evaluated

only the isthmian question of whether a particular item (there,

fast-track disparity) could be considered under the aegis of a

specific provision of section 3553(a) (there, section 3553(a)(6)).

See Andújar-Arias, 507 F.3d at 736. But as we explain below, the

Kimbrough Court's organic reading of section 3553(a) suggests that

a sentencing judge should engage in a more holistic inquiry.

The Court emphasized that section 3553(a) is more than a

laundry list of discrete sentencing factors; it is, rather, a

tapestry of factors, through which runs the thread of an

overarching principle. See Kimbrough, 128 S. Ct. at 570. That

tenet (sometimes referred to as the "parsimony principle")

instructs "district courts to 'impose a sentence sufficient, but

not greater than necessary' to accomplish the goals of sentencing."

Id. (quoting 18 U.S.C. § 3553(a)). This overarching principle

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necessarily informs a sentencing court's consideration of the

entire constellation of section 3553(a) factors, including the need

to avoid unwarranted disparity. Similarly, judicial interpretation

of section 3553(a) should be guided by the broadly worded "goals of

sentencing" spelled out in section 3553(a)(2), to which Kimbrough

pays homage. Id.

In the final analysis, then, the gloss supplied by

Kimbrough signifies that a district court should not evaluate a

request for a variant sentence piecemeal, examining each section

3553(a) factor in isolation, but should instead consider all the

relevant factors as a group and strive to construct a sentence that

is minimally sufficient to achieve the broad goals of sentencing.

This inquiry should be guided by, but not made unflinchingly

subservient to, the concerns expressed in the statute's various

sub-parts.

Seen in light of the Supreme Court's neoteric teachings,

a narrow focus on a particular factor in isolation, such as a

single-minded fixation on whether fast-track disparity can fit

within the confines of section 3553(a)(6), seems too cramped. After

all, each sub-part enumerates "only one of several factors that must

be weighed and balanced by the sentencing judge." United States v.

Fernandez, 443 F.3d 19, 32 (2d Cir. 2006). So, whether or not the

disparity of which the appellant complains is the type of disparity

to which section 3553(a)(6) is addressed, Kimbrough, properly

-16-
applied, teaches that a sentencing court should not rebuff such a

complaint out of hand.

That does not mean that the court should swallow such an

allegation hook, line, and sinker, nor does it mean that it is

foreclosed from determining that any disparity, when viewed through

the prism of section 3553(a), is insufficient to warrant a non-

guideline sentence. It does mean, however, that when confronted

with an allegation of fast-track disparity, the court should at that

point undertake a further inquiry. For example, it should probe

whether and to what extent a relevant disparity exists at all and

then, if it finds one, engage in a comprehensive evaluation of

whether this and other items in the constellation of section 3553(a)

factors, viewed as a whole, cast doubt on the suitability of a

within-the-range sentence. In the course of this assessment, the

court would have to ask whether such a sentence, if imposed, would

encourage "respect for the law," 18 U.S.C. § 3553(a)(2)(A); "provide

just punishment for the offense," id.; and "afford adequate," but

not excessive, deterrence, id. § 3553(a)(2)(B). Ultimately, the

court (depending on how it views the case) could ground a variant

sentence in the parsimony principle rather than in section

3553(a)(6) alone. See Kimbrough, 128 S. Ct. at 575; see also Vega-

Santiago, 519 F.3d at 4 (recognizing, post-Kimbrough, that a variant

sentence may be constructed "based on a complex of factors whose

interplay and precise weight cannot even be precisely described");

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United States v. Verkhoglyad, 516 F.3d 122, 131 (2d Cir. 2008)

(stating, post-Kimbrough, that no particular 3553(a) sentencing

factor should be given "determinative or dispositive weight")

(quoting Fernandez, 443 F.3d at 32).

This result is consistent with our post-Kimbrough case law

suggesting that even if a specific sentencing rationale cannot be

considered under the aegis of a particular sub-part of section

3553(a), such a proscription does not bar consideration of that

factor in the course of a more holistic review of the full panoply

of section 3553(a) factors. See, e.g., Martin, 520 F.3d at 94

(indicating that section 3553(a)(6)'s instruction to consider

"unwarranted sentencing disparities" was not intended to encompass

disparate coconspirator sentences but that such disparities

nonetheless could be considered under the totality of the section

3553(a) sub-parts).

For these reasons, we conclude that consideration of fast-

track disparity is not categorically barred as a sentence-evaluating

datum within the overall ambit of 18 U.S.C. § 3553(a). To the

extent necessary to effectuate this holding, we abrogate our earlier

opinion in Andújar-Arias.

The government labors mightily to stave off this holding.

Its most loudly bruited claim is that, in contradistinction to the

legislative actions at issue in Kimbrough, the PROTECT Act contains

an unequivocal congressional mandate that bans consideration of any

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disparity arising from the selective implementation of fast-track

programs. This argument finds support in the Fifth Circuit's recent

opinion in United States v. Gomez-Herrera, ___ F.3d ___ (5th Cir.

2008) [2008 WL 886091], in which the court, on materially identical

facts, determined that Kimbrough did not alter prior case law

restricting a sentencing court's authority to include fast-track

disparity in the sentencing mix. Id. at ___ [2008 WL 886091, at *2-

8].

We reject the government's importunings and in the

process, respectfully disagree with the conclusion reached by the

Gomez-Herrera panel. While the Kimbrough Court acknowledged that

a sentencing court can be constrained by express congressional

directives, such as statutory mandatory maximum and minimum prison

terms, 128 S. Ct. at 571-72, the PROTECT Act — as the Fifth Circuit

would have to concede — contains no such express imperative. The

Act, by its terms, neither forbids nor discourages the use of a

particular sentencing rationale, and it says nothing about a

district court's discretion to deviate from the guidelines based on

fast-track disparity. The statute simply authorizes the Sentencing

Commission to issue a policy statement and, in the wake of

Kimbrough, such a directive, whether or not suggestive, is "not

decisive as to what may constitute a permissible ground for a

variant sentence." Martin, 520 F.3d at 93.

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 By the same token, the PROTECT Act's authorization for the

selective deployment of fast-track programs bears scant resemblance

to a congressional directive instituting statutory minimum and

maximum sentences. Although the latter directive necessarily cabins

a sentencing court's discretion, the former authorization says

nothing about the court's capacity to craft a variant sentence

within the maximum and minimum limits.

Refined to bare essence, the government is urging us to

read into the PROTECT Act an implicit restriction on a district

court's sentencing discretion. But that can be done, as Gomez-

Herrera illustrates, only by heavy reliance on inference and

implication about congressional intent — a practice that runs

directly contrary to the Court's newly glossed approach. See

Kimbrough, 128 S. Ct. at 570-74 (declining, despite Congress's

implicit acquiescence in, or even its endorsement of, the 100-to-1

crack/powder ratio, to treat that ratio as beyond the reach of

section 3553(a)). In refusing to read a bar on policy disagreements

into either Congress's original formulation of the 100-to-1

crack/powder ratio in the Anti-Drug Abuse Act or its later rejection

of the Sentencing Commission's attempted softening of the ratio, id.

at 570-73, Kimbrough made pellucid that when Congress exercises its

power to bar district courts from using a particular sentencing

rationale, it does so by the use of unequivocal terminology.

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 Our decision in Martin hammers home this point. There,

the district court deviated dramatically downward from the GSR

applicable to a career criminal and sentenced him within the range

that would have obtained had he not been a recidivist. Martin, 520

F. 3d at 96. The government appealed, arguing that the variance was

insupportable because Congress had indicated its desire "that the

guidelines specify a sentence to a term of imprisonment at or near

the maximum term authorized" for recidivist offenders. 28 U.S.C.

§ 994(h). We rejected the argument, concluding that Kimbrough had

opened the door for sentencing courts to deviate from the guidelines

in individual cases notwithstanding Congress's competing policy

pronouncements. Martin, 520 F.3d at 96.

Another example of this phenomenon is our recent decision

in United States v. Politano, 522 F.3d 69 (1st Cir. 2008). In that

post-Kimbrough case, we concluded that community characteristics

could be factored into the sentencing calculus, notwithstanding

Congress's and the Sentencing Commission's expressed policy

preferences to the contrary. Id. at 73-74. In so holding, we

jettisoned a pre-Kimbrough decision of this court. See id. at 73

(effectively overriding United States v. Aguilar-Pena, 887 F.2d 347,

352 (1st Cir. 1989)).

If these holdings are to be given more than mere lip

service, they must mean that absent an unambiguous congressional

directive barring sentencing courts from considering disparity

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created by the district-by-district implementation of fast-track

programs, a sentencing court can include that datum in its

sentencing calculus, as long as the court grounds its rationale in

the complex of factors enumerated in 18 U.S.C. § 3553(a).

In a last-ditch effort to persuade us to bar consideration

of fast-track disparity, the government thunders that upholding

variant sentences premised in whole or in part on this ground will

be tantamount to "a judicial attempt to exercise prosecutorial

discretion" — an action that supposedly would impinge upon Executive

Branch authority and, thus, violate separation-of-powers principles.

This tirade elevates hope over reason.

While the decision to institute a fast-track program in

a particular judicial district is the Attorney General's, the

ultimate authority to grant a fast-track departure lies with the

sentencing court. See USSG §5K3.1. The appellant is not requesting

that this court direct prosecutors to institute a fast-track program

in the District of Puerto Rico or to offer him a fast-track plea.

Rather, the appellant asks that we gauge the impact of disparate

sentencing practices in crafting his sentence. Because this is an

unquestionably judicial function, we discern no separation of powers

concerns here.

Finally, the government argues that even if fast-track

disparity ordinarily can be considered in sentencing, the appellant

is outside the universe of defendants who might be advantaged by

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such a proposition. This is so, the government asseverates,

inasmuch as the appellant is not similarly situated to other

defendants charged with immigration crimes; after all, he filed

pretrial motions and did not waive his right to appeal. But the

government is trying to have it both ways. Lacking the benefit of

the bargain inherent in fast-track programs, a defendant cannot be

expected to renounce his right to mount a defense.4 Cf. United

States v. Tierney, 760 F.2d 382, 388 (1st Cir. 1985) ("Having one's

cake and eating it, too, is not in fashion in this circuit.").

III. CONCLUSION

We conclude that the district court, acting without the

benefit of the watershed decision in Kimbrough, committed procedural

error in refusing to consider the appellant's argument that he

should receive a variant sentence because of the disparity incident

to the lack of a fast-track program in the District of Puerto Rico.

Kimbrough makes manifest that sentencing courts possess sufficient

discretion under section 3553(a) to consider requests for variant

sentences premised on disagreements with the manner in which the

sentencing guidelines operate.

4
The government also claims that the appellant's prior felony
convictions might disqualify him from the fast-track program in
some districts. See, e.g., United States v. Duran, 399 F. Supp. 2d
543, 547 (S.D.N.Y. 2005). But this goes to the substance of the
appellant's argument — a matter that the district court did not
reach. In all events, the criteria for fast-track programs vary
from district to district, and the government has not suggested
that the appellant would be categorically foreclosed from receiving
fast-track benefits.

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 We add a note of caution. Our holding today is carefully

circumscribed; although sentencing courts can consider items such

as fast-track disparity, they are not obligated to deviate from the

guidelines based on those items. Cf. Martin, 520 F.3d at 91

(explaining that the mere "fact that a sentencing court possesses

the raw power to deviate from the guidelines does not mean that it

can (or should) do so casually"). By the same token, the district

court can make its own independent determination as to whether or

not a sentence tainted by the alleged disparity is nonetheless

consistent with the centrifugal pull of the constellation of

3553(a) factors.

We need go no further. For the reasons elucidated above,

we vacate the appellant's sentence and remand for resentencing

consistent with this opinion.5 In so doing, we take no view anent

the sentence that should be imposed here — which, conceivably, could

be higher, lower, or the same as the sentence appealed from. In the

first instance, the length of the term is up to the district court,

which must formulate a plausible sentencing rationale and reach a

defensible result. See id.; United States v. Jiménez-Beltre, 440

F.3d 514, 519 (1st Cir. 2006) (en banc).

Vacated and remanded.

5
Because we vacate the sentence and remand for re-sentencing,
we need not reach any of the appellant's alternative arguments.

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